Lord Falconer of Thoroton: Of course I shall consider it. I believe that the noble and learned Lord has identified entirely accurately the intention that the inquiry should have as its subject matter only post-commencement issues. It is recognised that in looking at a post-commencement issue one may have to go back to look at facts because events do not fit into neat pre and post-commencement categories. However, the amendment states that the inquiry can consider the pre-commencement facts,

"only to the extent that, consideration of those facts is necessary for him to be able to discharge his functions in relation to the subject matter of the inquiry".

That sets a limit as far as it is sensible to do so, having regard to the post-commencement obligation in relation to the subject matter of the inquiry.

Lord Mayhew of Twysden: But not in point of time. There is no backstop beyond which the inquiry, even with that proviso, cannot go. That seems to me the danger.

Lord Falconer of Thoroton: However, it simply recognises the basic premise that certain facts before the starting date may be relevant.

On Question, amendment agreed to.

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[Amendments Nos. 215 and 216 not moved.]

Baroness Harris of Richmond had given notice of her intention to move Amendment No. 217:

Page 31, line 22, leave out subsection (13) and insert--

("(13) The costs incurred in respect of an inquiry under this section shall be defrayed by the Secretary of State.").

The noble Baroness said: I listened very carefully to what the Minister said about this matter. I was fairly disappointed, knowing that there will almost certainly be inquiries that the policing board will need to take into account. Bearing in mind the board's budget, it will be almost impossible for it to do so, and I ask the Minister to consider that point. However, there is a chink of light. I believe that I understood him to say that the policing board may bid for money to cover any inquiry that might be considered. I hope that the spirit of that will be sufficient for him to realise that we are making a very important point.

In light of the Minister's response, I shall not move my amendment.

[Amendment No. 217 not moved.]

Lord Falconer of Thoroton moved Amendment No. 218:

Page 31, line 28, after ("Constable;") insert--

("( ) the Ombudsman;").

On Question, amendment agreed to.

On Question, Whether Clause 58, as amended, shall stand part of the Bill?

Lord Hylton: I simply want to point out that the matter of "a sensitive personal nature" arises not only in Clause 57 but also in Clause 58(3)(b). I hope that at the next stage of the Bill government amendments will be tabled which cover both occurrences.

Clause 58, as amended, agreed to.

Clause 59 agreed to.

Lord Falconer of Thoroton moved Amendment No. 219:

Before Clause 60, insert the following new clause--

MEDIATION

(" .--(1) After section 58 of the 1998 Act there shall be inserted--
"Steps to be taken after investigation - mediation.
58A.--(1) If the Ombudsman--
(a) determines that a report made under section 56(6) or 57(8) does not indicate that a criminal offence may have been committed by a member of the police force, and
(b) considers that the complaint is not a serious one,
he may determine that the complaint is suitable for resolution through mediation.
(2) If he does so, he must inform the complainant and the member of the police force concerned.
(3) If the complainant and the member of the police force concerned agree to attempt to resolve the complaint through mediation, the Ombudsman shall act as mediator.
(4) Anything communicated to the Ombudsman while acting as mediator is not admissible in evidence in any subsequent criminal, civil or disciplinary proceedings.

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(5) But that does not make inadmissible anything communicated to the Ombudsman if it consists of or includes an admission relating to a matter which does not fall to be resolved through mediation.
(6) If a complaint is resolved through mediation under this section, no further proceedings under this Act shall be taken against the member of the police force concerned in respect of the subject matter of the complaint."
(2) For subsection (1) of section 59 of the 1998 Act (disciplinary proceedings) there shall be substituted--
"(1) Subsection (1B) applies if--
(a) the Director decides not to initiate criminal proceedings in relation to the subject matter of a report under section 56(6) or 57(8) sent to him under section 58(2); or
(b) criminal proceedings initiated by the Director in relation to the subject matter of such a report have been concluded.
(1A) Subsection (1B) also applies if the Ombudsman determines that a report under section 56(6) or 57(8) does not indicate that a criminal offence may have been committed by a member of the police force and--
(a) he determines that the complaint is not suitable for resolution through mediation under section 58A; or
(b) he determines that the complaint is suitable for resolution through mediation under that section but--
(i) the complainant or the member of the police force concerned does not agree to attempt to resolve it in that way; or
(ii) attempts to resolve the complaint in that way have been unsuccessful.
(1B) The Ombudsman shall consider the question of disciplinary proceedings."
(3) After subsection (2) of that section, there shall be inserted--
"(2A) In a case mentioned in subsection (1A)(b), the Ombudsman shall, in considering the recommendation to be made in his memorandum, take into account the conduct of the member of the police force concerned in relation to the proposed resolution of the complaint through mediation."
(4) In section 64(2) of the 1998 Act (regulations)--
(a) in paragraph (b), after "resolution" insert "or mediation";
(b) in paragraph (c), after "informally" insert "or through mediation"; and
(c) in sub-paragraph (i) of paragraph (d), after "informally" insert "or through mediation". ").

The noble and learned Lord said: In moving Amendment No. 219, perhaps I may also deal with a number of other amendments in this group which are associated with government amendments.

The Police Ombudsman asked the Government to include a provision in the Bill to enable her to attempt to resolve complaints through mediation. She agreed the approach with a number of people, including Maurice Hayes, the author of the report which led to the establishment of her office, the Chief Constable and police staff associations. It is a sensible provision aimed at addressing as quickly and at as low a level as possible complaints which are not criminal or otherwise serious. In order to use mediation, the ombudsman must first obtain the agreement of the complainant and the officer concerned.

My noble friend Lord Desai tabled Amendments Nos. 220 and 221. With the Committee's permission, I should like to deal with those along with the related Amendment No. 222 in the name of the noble and learned Lord, Lord Archer, and government

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Amendment No. 222A. Amendments Nos. 220, 221 and 222 would enable the ombudsman to investigate police policies and practices. The Government do not accept that the ombudsman should have a roving role in commenting on such issues, and they do not believe that that is what Patten intended.

Furthermore, the Government see such an approach as inappropriate, given that it is the role of the policing board and not the ombudsman to deal with police policies and practices. The ombudsman's primary function is to investigate police conduct.

Nevertheless, taking account of concern in that area, the Government introduced Amendment No. 222A, which will enable the ombudsman to conduct research into reporting on policies and practices arising from her investigations into complaints. That is a sensible provision which I know the ombudsman will welcome.

I ask the noble Lord, Lord Desai, not to move Amendments Nos. 220 and 221, and I ask the noble and learned Lord, Lord Archer of Sandwell, not to move Amendment No. 222 as I shall be moving Amendment No. 222A at the appropriate moment.

Perhaps I may deal with Amendment No. 223 in the names of the noble and learned Lord, Lord Archer of Sandwell, the noble Baroness, Lady Harris, and the noble Lord, Lord Smith. When considered from the point of view of the policing board, that amendment appears most attractive. Of course, the Government must look at it from a number of different angles, including that of the ombudsman. There are a number of important points to be made. First, the board and the ombudsman are both independent bodies. Secondly, the ombudsman is already required to supply information to the board together with other general information which she considers should be brought to the board's attention under Clause 61. The current provision appears to be reasonable and sensible and, again, I ask for the amendment not to be pursued.

Government Amendment No. 223A deals with the recently enacted Regulation of Investigatory Powers Act 2000. It enables the Secretary of State to make regulations covering the relationship between the Regulation of Investigatory Powers Act Tribunal, which considers complaints under the 2000 Act, and the Police Ombudsman. The ombudsman is content with the provision, as are the police. The regulations would naturally be subject to consultation with the ombudsman. At this stage I shall not deal with Amendment No. 224 in the name of my noble friend Lord Desai. I beg to move.

6.30 p.m.

Lord Archer of Sandwell: After my noble and learned friend has been so accommodating, it may sound almost churlish on my part if I reprimand him for a bad habit which the whole Front Bench are now getting into; that is, answering arguments before they have heard them. I have not even moved my amendment yet.

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Perhaps I may say a word about Amendment No. 222. As at present drafted, the Bill envisages that the ombudsman will act only in relation to individual complaints and only when the process is initiated by an individual complainant. Indeed, in the other place the Secretary of State confirmed that that was the intention.

The problem is this. The ombudsman is really the only person provided for in the Bill who will be able to investigate the impact of policing on individuals. But there are ways in which policing can have an impact on individuals which do not readily lend themselves to individual complaints. Certainly it may not always be easy to single out a specific police officer against whom a complaint is made. One example cited to me is the incident at Drumcree in 1998. Plastic bullets were fired at people in the crowd. No individuals were willing to single themselves out as making a complaint, and it was virtually impossible to identify a specific police officer who fired a specific bullet. Yet it may well call for someone who is empowered to investigate the incident and, since we are all agreed that we want to avoid an unnecessary inquiry, preferably without the necessity of establishing an inquiry.

The clause says that the ombudsman may report on matters which come to his attention "under this part"--that means of the 1998 Act. Of course, we know that those are related to individual complaints. I am grateful for Amendment No. 222A, but, as I read it, it still confines any information which the ombudsman gives to matters arising from a complaint.

The Patten commission declared in its recommendation 38 that the ombudsman should take initiatives and not merely react to specific complaints received. So it is not clear why she is now denied that power. I must not look a gift horse in the mouth, and I must perhaps ignore old proverbs about Greeks bearing gifts. However, between now and Report stage I promise to look carefully at the half-way house where my noble and learned friend is meeting us and I shall not take this matter further this afternoon.

Amendment No. 223 is a probing amendment. Clause 61 imposes on the ombudsman an obligation to supply the board with necessary statistical information. The Human Rights Commission raised the question whether that exhausts all the useful information which he may give to the board. In paragraph 6.41 of the Patten report, it was recommended that he should compile data on trends and patterns, and that is no doubt what the provision addresses. But it goes on to say that he,

"should work with the police to address issues emerging from this [statistical] data".

So there should be what the commission calls a "dynamic cooperative relationship".

In particular the commission recommends that the ombudsman should supply data on,

"accumulations of complaints against individual officers".

Yesterday, on the Freedom of Information Bill, we became involved in an interesting debate as to what is and what is not a statistic. This afternoon the noble and learned Lord, Lord Mayhew, raised the question

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of what is and what is not a fact. One could spend a great deal of time on this issue in a seminar. If the ombudsman says that there is a complaint about a specific officer; that is a fact. If he says that there have been two complaints about the officer, that is a statistic. If he said that the officer was placed in a situation which made undue demands on him, that is not a statistic; it is simply information.

I do not propose to elaborate at great length; I am not being paid to deliver a lecture. But, having answered the argument which I had not then advanced, my noble friend may wish to think about it again.